IN THE CASE OF: BOARD DATE: 17 March 2016 DOCKET NUMBER: AR20150001052 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ____x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 17 March 2016 DOCKET NUMBER: AR20150001052 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _______ _ x_______ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. IN THE CASE OF: BOARD DATE: 17 March 2016 DOCKET NUMBER: AR20150001052 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, correction of the effective date for his appointment to captain (CPT)/pay grade O-3 in the U.S. Army Reserve (USAR) from 6 October 2009 to 16 May 2009 with no break in service. 2. The applicant states he was honorably discharged from Regular Army (RA) on 15 May 2009 and transferred to the 338th Medial Brigade (USAR). He reported to the unit on 12 June 2009 for duty as the brigade S-6 and submitted a copy of his DA Form 71 (Oath of Office). a. He attended unit drills in July and September 2009, and annual training at the Joint Readiness Training Center, Fort Polk, LA, in August 2009. He also performed Rescheduled Training (RST) during those three months. He has been serving with the USAR unit since 16 May 2009. b. He states that he was unaware of any issues or discrepancies with his original DA Form 71 and "scroll" date until 5 December 2014 when he received a telephone call from a representative from the U.S. Army Human Resources Command (HRC). He was advised to complete another DA Form 71 for his appointment as a CPT in the USAR and informed that the earliest (retroactive) appointment date would be in October 2009. 3. The applicant provides copies of his: * separation orders with amendment * two DA Forms 71 * unit drill attendance rosters and records * annual training orders * USAR appointment letter * request to change "scroll" date CONSIDERATION OF EVIDENCE: 1. The applicant was appointed as a Reserve commissioned officer in the rank of second lieutenant on 27 June 2003. He entered active duty on 15 September 2003. He was then appointed as a commissioned officer in the RA. 2. U.S. Army HRC, Alexandria, VA, Order Number 291-049, dated 18 October 2006, promoted the applicant to CPT (O-3) effective and with a date of rank (DOR) of 1 November 2006. 3. U.S. Army HRC, Alexandria, VA, Memorandum for Record, dated 9 April 2009, subject: Unqualified Resignation), shows the applicant's request for unqualified resignation was approved. His request for reserve appointment was referred to the appropriate office for action and reply to the applicant. 4. Headquarters, 3rd Infantry Division, Fort Stewart, GA, Orders 110-0007, dated 20 April 2009, as amended by Orders 119-0019, dated 29 April 2009, show the applicant was discharged from the RA on 15 May 2009 and reassigned to Headquarters and Headquarters Detachment (HHD), 338h Medical Group, Chester, PA, with a reporting date of 15 May 2009. The additional instructions of the order show, "You are required to report to your unit of assignment within thirty (30) days of release from active duty." 5. A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was honorably discharged from the RA on 15 May 2009 and transferred to HHD, 338h Medical Group. He had completed 5 years, 8 months, and 1 day of net active duty service this period. It also shows he was discharged in the rank/grade of CPT/O-3. 6. A DA Form 71, completed by the applicant and a commissioned officer who administered the oath on 16 May 2009, shows the applicant was appointed as a Reserve commissioned officer in the grade of CPT. 7. U.S. Army HRC, Fort Knox, KY, memorandum, dated 6 October 2009, subject: Appointment as a Reserve Commissioned Officer of the Army Under Title 10, U.S. Code, sections 12201 and 12203, shows the Secretary of the Army directed and the applicant was informed that he was appointed as a Reserve commissioned officer of the Army in the grade of CPT (O-3). It also shows in paragraph 6, "No waivers indicated. You will incur a break in service 16 May 2009 to 6 October 2009 due to scroll confirmation. DORRES (Reserve DOR) to be adjust[ed], corrections for break in service must be submitted to Army Review Boards Agency. You are being reappointed in highest grade held. You may not resign your reserve status until completion of your Military Service Obligation (MSO)." Information in the "footer" portion of the memorandum shows: * Scroll Date/Rank: 6 October 2009, CPT * Date of Acceptance: 12 December 2014 * Effective Date: 6 October 2009 8. U.S. Army HRC, Fort Knox, KY, Orders B-09-305629, dated 4 September 2013, promoted the applicant to major/pay grade O-4 in the USAR effective and with a DOR of 19 July 2013. 9. A DA Form 71, completed by the applicant and a commissioned officer serving as adjutant who administered the oath on 12 December 2014, shows the applicant was appointed as a Reserve commissioned officer in the grade of CPT. 10. The applicant provides copies of the following additional documents: a. four Unit Transaction Drill Rosters, dated 13 July 2009, 17 July, 3 September, and 14 September 2009; two Inactive Duty Training (IDT) Rosters, dated 8 July 2009 and 9 September 2009; and four DA Forms 1380 (Record of Individual Performance of Reserve Duty Training), dated 16 July 2009, 20 August, 26 August, and 3 September 2009; that show the applicant's creditable drills (IDT and RST) and annual training (AT) during July, August, and September 2009; b. 81st Regional Support Command, Fort Jackson, SC, Order Number 139315, dated 21 July 2009, that shows he was ordered to AT during the period 29 July 2009 to 13 August 2009; c. USA HRC, Points Detail for the period 11 July 2009 through 22 October 2009; and d. Headquarters, 338th Medical Brigade, USAR Training Center, Horsham, PA, memorandum for record, dated 6 January 2014, subject: Request Change to Scroll Date to 16 May 2009. The memorandum provides a similar summary of the information the applicant presents in his application to this Board. 11. In the processing of this case, an advisory opinion was obtained from the Chief, Officer Accessions Branch, U.S. Army HRC, Fort Knox, KY. a. The advisory official referenced Executive Order 13358, Assignment of Functions Relating to Certain Appointments, Promotions, and Commissions in the Armed Forces, dated 30 September 2004. b. He indicated the action for resolution of the applicant's case (i.e., to reflect an effective date of 16 May 2009 and nullify his break in service) does not fall within that office's area of responsibility as it cannot be legally accomplished. 12. On 22 February 2016, the applicant was provided a copy of the advisory opinion to allow him the opportunity to submit comments or a rebuttal. To date, the applicant did not respond. REFERENCES: Executive Order 13358, Assignment of Functions Relating to Certain Appointments, Promotions, and Commissions in the Armed Forces, issued by the White House on 30 September 2004, delegated authority of the President to appoint officers in the USAR to the Secretary of Defense, with no further subdelegation authorized. On 1 July 2005, the directive was issued and stated that all officers appointed into the USAR must be on an approved scroll and signed by the Secretary of Defense before an Oath of Office can be initiated. DISCUSSION: 1. The applicant's contention that his records should be corrected to show he was appointed as a Reserve commissioned officer in the grade of CPT (O-3) with no break in service was carefully considered. 2. Records show the applicant was promoted to CPT (O-3) with a DOR of 1 November 2006. He was honorably discharged from the RA on 15 May 2009. 3. Records show he executed an Oath of Office for appointment as a Reserve commissioned officer in grade of CPT on 16 May 2009. The evidence of record shows he reported to his USAR unit on 12 June 2009 and that he participated in unit drills and annual training during July, August, and September 2009. In the absence of evidence to the contrary, it is reasonable to conclude the applicant received pay and allowances for his attendance at unit drills and annual training during the above period of service. However, that is not the essential issue under review in this case. 4. Executive Order 13358 requires that all officers appointed into the USAR must be on an approved scroll and signed by the Secretary of Defense before an Oath of Office can be initiated. 5. The applicant was informed he was appointed as a Reserve commissioned officer of the Army in the grade of CPT (O-3) effective 6 October 2009; the date the promotion scroll was approved. He was also informed that he would incur a break in service from 16 May 2009 to 6 October 2009 due to scroll confirmation that occurred on 6 October 2009. 6. In view of the foregoing, there is no legal or administrative basis for correcting the date of the applicant's appointment as a Reserve commissioned officer in the grade of CPT (O-3). //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150001052 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150001052 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2